Madras High Court

P.Theepam vs The Secretary To Government on 12 November, 2021

                                                                              W.P.No. 17630 of 2009

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 12.11.2021

                                                      CORAM

                                   THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR

                                               W.P.No. 17630 of 2009


                     P.Theepam                                                    ..Petitioner

                                                           Vs

                     1.The Secretary to Government,
                     Tamil Development, Religious Endowment and
                     Information (Ani. 2-1) Department,
                     Fort.St.George,
                     Chennai-600009.

                     2.The Commissioner,
                     Hindu Religious and Charitable
                        Endowment Department,
                     Nungambakkam High Court,
                     Nungambakkam,
                     Chennai-600034.

                     3.The Assistant Commissioner,
                     Hindu Religious and Charitable
                        Endowment Department,
                     Coimbatore.                                            ..Respondents

                     Prayer: Writ Petition is filed under Article 226 of Constitution of India
                     for writ of Certiorarified mandamus, calling for the records relating to
                     the impugned order of the 1st respondent in G.O.Ms.No. 121 Tamil
                     Development, Religious Endowment and Information (Ani.2-1)
                     Department, dated 12.02.2009 and quash the same and consequently
                     direct the respondents to grant all consequential benefits to the
                     petitioner including regularisation of period of suspension as duty
                     period.

                     1/18


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                                                                                      W.P.No. 17630 of 2009



                                  For Petitioner           : Mr.R.Thiagarajan
                                  For Respondents          : Mr.T.Arun Kumar, GA

                                                             *****

                                                           ORDER

The principle ground raised in the writ petition is that the original

authority has passed an order imposing punishment of stoppage of two

increments with cumulative effect. The said order was challenged

before the appellate authority and the appellate authority instead of

canceling the order passed by the original authority, has modified the

punishment as stoppage of one increment with cumulative effect.

Challenging the same, the present writ petition is filed.

2. According to the learned counsel for the petitioner, the order

is not a speaking order. As per Rule 23 of Tamil Nadu Civil Services

(Discipline and Appeal) Rules the appellate authority has to give

sufficient reason for confirming, enhancing, reducing, or setting aside

the penalty imposed by the original authority. But in the present case,

without any discussion regarding grounds submitted by the petitioner,

has modified the punishment imposed by the original authority to

some extent. The petitioner has also made a request before the

appellate authority to set aside the order of the original authority, but

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the appellate authority fails to consider the said request, hence the

present writ petition.

3. On the other hand, the learned Government Advocate has

submitted that specific charges were framed against the petitioner

under Rule 17(b) of Tamil Nadu Civil Services (D & A) Rules by the

Assistant Commissioner/3rd respondent herein for dereliction of duty.

After elaborate enquiry, the 2nd respondent had passed final order

imposing punishment of stoppage of increment for two years with

cumulative effect. Subsequently, on appeal preferred by the petitioner,

the 1st respondent based on the recommendations made by the

TNPSC, modified the punishment to stoppage of increment by one year

with cumulative effect. Hence the modification order passed in the

appeal by the 1st respondent is valid and does not require any

interference.

4. Heard, both sides and perused the materials available on

record.

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5. Though it is strongly contented by the learned Government

Advocate that the 1st respondent/appellate authority had passed the

order based on the opinion given by the TNPSC, perusal of orders

reveals that both the 1st respondent and the 2nd respondents have not

dealt with the objections raised by the petitioner in his explanation

before imposing punishments. This Court feels that the appellate

authority has failed to consider the objections /grounds raised by the

petitioner in the appeal with reference to the parameters set out in

Rule 23 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

6. As the preliminary ground raised before this Court, as to

whether the appellate authority has disposed of the statutory appeal

with reference to Rule 23 of the Tamil Nadu Civil Services (Discipline

and Appeal) Rules, therefore, it is necessary to extract the relevant

rule dealing with the power of the appellate authority.

"23. (1) In the case of an appeal against an order imposing

any penalty specified in rule 8 or 9, the appellate authority

shall consider-

(a) whether the facts on which the order was based have been established;

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(b) whether the facts established afford sufficient ground for taking action; and

(i) confirming, enhancing, reducing, or setting aside the penalty; or

(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; provided that-

(i) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses

(iv), (v)(c), (vi), (vii) and (viii) of rule 8 and an inquiry under sub rule (b) if rule 17 has not already been held in the case, the appellate authority shall, subject to the provisions of sub- rule (c) of rule 17, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of sub-rule

(b) of rule 17 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it may deem fit;

(ii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses

(iv), (v)(c), (vi) (vii) and (viii) of rule 8 and an inquiry under sub-rule (b) of rule 17 has already been held in the case, the appellate authority shall make such orders as it may deem fit; and

(iii) no other imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of sub-rule (b) of rule 17 of making representation against such enhanced penalty;

2. Any error or defect in the procedure followed in imposing a penalty may be disregarded by the appellate authority if such

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authority considers, for reasons to be recorded, that error or defect was not material and has neither cause in justice to the person concerned nor affected the decision of the case."

7. The Hon'ble Supreme Court and this Court on various

decisions held that the Appellate Authority must not only give a

hearing to the government servant concerned but also pass a

reasoned order dealing with the contentions raised by him/her in the

appeal. Following various decisions of the Hon'ble Supreme Court,

this Court, in the case of N.Sivakumaran Vs. The State of Tamil Nadu,

Rep. By the Secretary to Government, Chennai & Others, reported in

(2009) 1 MLJ 701 had held as follows;

“ 32. In the case of an appeal against the order of imposing any penalty under Rules 8 or 9, the appellate authority shall consider as to whether (1) the facts on which the order was passed have been established, (2) the facts established offered sufficient ground for taking action and (3) the penalty is excessive, adequate or inadequate and passed orders confirming, enhancing, reducing or setting aside the penalty or committed remitting the case to the authority of which imposed the penalty, with such direction as it may be deemed fit in the circumstances of the case. Clause ii of Rule 23 (1) states that any error or defect in the procedural violation in imposing penalty may be disregarded by the appellate authority if such authority considers for the reason to be recorded in writing that the

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error or defect was not material and had neither caused injustice to the person concerned or affect the decision of the case. Powers of the appellate authority are circumscribed by a specific statutory provision which sets out the parameters to be examined by such authority.

Unless the appellate authority examines the said aspects and assign brief reasons, mere extracting the views of the Tamil Nadu Public Service Commission does not satisfy the requirements of the statutory rule and that would not amount to giving of reasons. Besides looking into the factual aspects, the appellate authority is also enjoined with the duty to examine whether there is any procedural defect or violation or error in imposing the penalty and Clause (ii) of Rule 23(1) and discard any error or defect or procedural violation in imposing the penalty, if the authority finds that such error or defect or violation is not material or injustice to the person concerned or affect the decision. A penalty suffered by a government servant affects his service and monetary benefits and casts a stigma in his career. It is well known that penalty suffered by a government servant is counted for promotion to higher posts. Right to consider for promotion has been recognized as a statutory right and therefore, when the authority is vested with the jurisdiction of testing the correctness of penalty, circumscribed by certain parameters , it is imperative that such authority has to scrupulously follow the parameters set out in the rule. All the more, if the government servant is inflicted with a major penalty of removal or dismissal or compulsory

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retirement, whereby he is deprived of his right to earn through employment, the protection given under Article 311(2) of the Constitution of India, supported by statutory rules, the procedure to be followed and the factors to be taken into account by the disciplinary and appellate authorities cannot be simply disregarded by such authorities to the detriment of the employee. The Supreme Court in Delhi Transport Corporation v. DTC. Mazdoor Congress reported in 1991 Supp. (1) SCC 609, held that, "The right to life includes right of livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right of work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.

The right to public employment and its concomitant right to livelihood receive their succour and nourishment under the canopy of the protective umbrella of Articles 14, 16(1), 19(1)(g) and 21. Different articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject matter of what is to be protected by its various provisions particularly the Fundamental Rights. When the provisions of an Act or Regulations or Rules are assailed as

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arbitrary, unjust,unreasonable, unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of interplay of Articles 14, 16(1), 19(1)(g) and 21 and of the inevitable effect of the impugned provisions on the rights of a citizen and to find whether they are constitutionally valid. The right to a public employment is a constitutional right under Article 16(1). All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the rules made under proviso to Article 309 of the Constitution or the statutory provision or the rules, regulations or instructions having statutory flavour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees the right to live which includes right to livelihood, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as to be fair, just and reasonable but not fanciful, oppressive or at vagary."

33. When the appellate authority fails to exercise his statutory duty, which affects the fundamental right of a person and if such authority disposes of an appeal, disregard to the manner circumscribed under the rules and fails to assign brief reasons, indicating his mind, it amounts to denial of justice. Prejudice is per-se evident

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and therefore, even if the employee has not raised the question of non-consideration of his appeal in accordance with the statutory rules in the Writ Petition. Considering the deprivation of his right to livelihood, guaranteed under Article 21 of the Constitution of India, scuttling his right of his appeal being considered in the manner as provided in the statutory rules would be contrary to the spirit of the Constitutional Guarantee, viz., the right to life with dignity, which can be achieved through the income derived from his employment, the fundamental source. One should not forget that judiciary is the last resort of an aggrieved person and it is not enough that justice should be done and it must also be seen to be done. Useful reference can be made to a decision of the Supreme Court in State of W.B v. Anwar Ali Sarkar reported in AIR 1952 SC 75, and relevant portion in the judgment is extracted hereunder:

"It may be that justice would be fully done by following the new procedure. It may even be that it would be more truly done. But it would not be satisfactorily done, satisfactory that is to say, not from the point of view that the governments who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street. It is not enough that justice should be done. Justice must also be seen to be done and a sense of satisfaction and confidence in it engendered."

34. Scrutiny of the appellate authority's order reveals that after extracting the summary of facts, at Paragraph 8 of

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the order, the appellate authority has merely stated that "the opinion of the Tamil Nadu Public Service Commission has been independently and carefully considered. The punishment of removal awarded by the Principal Commissioner and Commissioner for Revenue Administration is not excessive and therefore, the Government had decided to reject the appeal and accordingly, rejected the same." Thus it is manifestly clear that the appellate authority has passed a cryptic order and that there is a failure to consider the parameters set out in rule 23(1) of the said Rules. contention raised by the delinquent officer. In the interest of justice, the delinquent officer is entitled to know atleast the mind of the appellate authority in dismissing his appeal. No doubt, detailed reasons are not required to be given, but some brief reasons should be indicated in the order affirming the views of the disciplinary authority. As observed in Alexander Machinery (Dudley) Ltd., v. Crabtree [1974 ICR 120 (NIRC)], reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx, it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision.

35. The subjective satisfaction of the appellate authority is conspicuously absent regarding rule 23(1)(a) (b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. The order does not reflect active application of the mind of the

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appellate authority and to put it in the words of the Apex Court, it is 'lifeless', except examining the quantum of penalty.

36. In view of the above, the impugned order of punishment is set aside and the Writ Petition is partly allowed. The matter is remitted back to the appellate authority to consider all the parameters in Rule 23 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules and to pass an order on merits, within a period of four weeks from the date of receipt of a copy of this order. No costs.”

8. In another case C.Devendhiran Vs. The Deputy Inspector

General of Police, Villupuram Range (W.P.No. 150 of 2013)

reported in 2020 (2) WLR 332, wherein I had an occasion to deal

with the same issue in detail and held that the order passed by the

appellate authority is a cryptic/non-speaking order. The relevant

portion of the order is extracted hereunder;

“13. The Learned Senior Counsel for the Writ Petitioner has relied upon the decision reported in 1989 writ law reporter 274 considered rule 6(1) of TNPSS (D&A) Rules and it has been held as follows at para 3 and 4 of the said judgment.

"The rule enjoins the concerned authority to consider the three aspects

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set out therein specifically. Unless the appellate authority considers them it cannot be said that it has carried out its duties properly. The Supreme Court had occasion to discuss a similar question under R.27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Dealing with the word 'consider' used in the said rule, the Supreme Court observed that the word 'consider' implies due application of mind-vide R.P.Bhatt v. Union of India. The following paragraph in the above judgment of the Supreme court can be usefully referred to with advantage-

"The word 'consider' in R.27(2) implies 'due application of mind'. It is clear upon the terms of R.27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. R27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.

There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (2) of R.27(2) viz., whether the penalty imposed was adequate

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or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of R.27(2) of the Rules the impugned order passed by the Director General is liable to be set aside."

14. In another judgment of this Court in the case of K.Kandasamy Vs. Deputy I.G. of police, reported in 2006 (4) MLJ 1382 in para 7, this Court has held as follows :-

“It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate Appellate Authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence, the Appellate Authority's order is liable to be set aside.”

15. It is also pertinent to refer the Judgment of the Hon'ble Supreme Court in Narinder Mohan Arya Vs.United India Insurance Company Ltd, reported in 2006(4) SCC 713,wherein the Hon'ble Supreme Court has held that even when an Appellate Authority agrees with the findings of the Disciplinary Authority in a departmental enquiry, it should give reasons so as to enable the Writ Court to ascertain there was an application of the mind as required by the relevant rules. The relevant portion is extracted hereunder;

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“33. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirements of law while exercising his jurisdiction under Rule 37 of the Rules.”

16. In view of the decisions cited supra and Rule 6(1) of Tamil Nadu Police Subordinate Service (Discipline & Appeal ) Rules, it is clear that the appellate authority is the final fact finding authority and he is expected to assess the evidences available on record by due application of mind and also record the reasons even though not elaborately, but indicating as to how the appellate authority has satisfied himself with the reasons given by the disciplinary authority. When Rule 6 (1) of Tamil Nadu Police Subordinate Service (Discipline & Appeal ) Rules mandates that the appellate authority should consider all those materials, in the instant case, no such finding has been given by the appellate authority except simply saying that he has perused some documents and came to the conclusion that the punishment awarded by the 1st respondent is not an excessive and rejected the same.

17. Considering the facts and circumstances of the case and also the decisions rendered by the Hon'ble Supreme Court and this Court cited supra, this Court with no hesitation, has come to the conclusion that the second respondent/ appellate authority has passed a cryptic order/non-speaking order without considering the issues that were raised by the petitioner in his Appeal. As rightly pointed out by the learned senior counsel for the petitioner, the order of the appellate authority/ 2nd respondent is not in conformity with the rule 6(1) of TNPSS (D&A) Rules.

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18. In fine, the impugned order in RC. No.047950/AP1(2)/2000, dated 03.07.2010 passed by the second respondent in respect of P.R. No. 67/ 2009 is quashed and the matter is remitted to second respondent to consider afresh and to pass orders thereon, on merits and in accordance with law, within a period of twelve (12) weeks from the date of receipt of the copy of this order.

19. With the above observations and directions, this writ petition is disposed of. No costs.”

9. On the facts of the present case on hand, it is clear that the

1st respondent/appellate authority has not strictly followed the Rule 23

of Tamil Nadu Civil Services (Discipline and Appeal) Rules and passed a

non-speaking order, without any discussion on the grounds raised by

the petitioner and modified the punishment imposed by the original

authority.

10. Therefore, considering the facts and circumstances of the

case and in view of the decisions cited supra, this Court without any

hesitation has come to the conclusion that the iimpugned order of

punishment is liable to the quashed.

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